Monitoring the Mental Health Act 2022/23: key points to note

A lack of agreed long term funding for the Second Opinion Appointed Doctor (SOAD) service is creating problems with resourcing. This means the service is not keeping pace with demand, creating a safeguarding issue for people whose rights are restricted under the Mental Health Act. CQC are concerned about its sustainability. In 2022/23 there were 15,370 requests for a SOAD. The length of time is increasing between receiving a request and SOAD certification. Of the SOAD visits made 76%25 resulted in no change to treatment plans, 18%25 were slightly changed and 4%25 of plans were changed significantly. In the remaining 2%25 of cases no certificate was issued.

Longstanding inequalities in mental health care persist with more work needed to address the over representation of black people detained.

Concern is expressed that workforce issues combined with lack of designated in-patient beds for Children and Young People (CAYP) / inappropriate ward layouts are leading to the use of blanket restrictions.

CQC remain concerned about a disproportionate use of force against some groups of people including people from ethnic minority groups, autistic people and people with a learning disability.

One in five mental health nursing posts were vacant in the first three months of 2022/23. The British Medical Association figures show this figure is one in seven for equivalent doctor roles. CQC refer to NHS Confederation’s description of mental health services in “persistent crisis mode”.

A reminder of Article 8 Human Rights Act is set out at page 14. CQC state that they are concerned that cancelling patient’s leave due to staffing issues could lead to a potential breach of their human rights.

Lack of therapeutic facilities and one to one sessions with staff leads to boredom and could lead to violence, aggression or self-harm.

CQC were pleased that non legislative action continues such as the Patient and Carer Race Equalities Framework. As part of their new assessment framework, they will be assessing PCREF under the Quality Statement “Equity in Experiences and Outcomes”. They state that they will look at this in all planned regulatory assessments in NHS funded mental health services. They expect providers to actively seek out and listen to information about people who are most likely to experience inequality in experience or outcomes. Care, support and treatment should be tailored in response to this. Mental Health Trusts are required to implement PCREF and CQC will assess this using the Well Led framework under the Quality Statement “Shared Direction and Culture”.

CQC supported the ambition of the draft Mental Health Bill to prevent inappropriate detention for autistic people and people with a learning disability. However, they have raised concerns about some potential unintended consequences in the wording of the current draft Bill. You can read our summary of Mental Health Act reform here.

They continue to see examples of CAYP being admitted temporarily to section 136 suites because of a lack of alternative beds. This removes such suites from their intended use. When they find a child is being treated in an unsuitable setting, they hold a review meeting to look at the provider’s actions. If the child is in an acute hospital, they ask the provider to respond and give updates and assurances on finding a suitable bed. They also check whether a risk summit has been held with commissioners. In cases involving those with autism or learning disability they check that patients are on the dynamic support risk register and raise these cases with the ICB. They received 196 notifications in 2022/23 which is a similar figure to 2020/21 and lower than 2021/22.

Between April 2022 and March 2023, on average there were still 388 out of area placements started each month. CQC are alive to the challenges these present when patients are ready to be discharged, such as securing appropriate community support back in the person’s local area.

Services must work to understand the events that led up to any incidents where restrictive practice was used, report on them, learn from them and actively work to reduce them in the future.

CQC saw examples of leave being used as reward or punishment and blanket policies being applied around patient access to fresh air. Reference is made back to the 2022/23 State of Care report here, and the variable understanding of the interface between the Mental Capacity Act (and Deprivation of Liberty Safeguards) and the Mental Health Act. CQC observe that where both frameworks could be used it is not always clear how staff decided that using DoLS would be most appropriate.

While CQC have seen more people are now aware of the factors that can lead to closed cultures developing, they remain concerned that too many abusive and closed cultures persist. They continue to see evidence of people not being involved in their care and are concerned this is a warning sign that services are not safeguarding people against discrimination, harm or abuse.

CQC state that they are committed to improving how they can be better at understanding the culture of a service and how they can identify potential risks or actual harm, neglect, discrimination, abuse, inequalities and human rights infringements. They are going to spend more time on site.